Terms and Condition

This Terms & Conditions Agreement (“Terms & Conditions”) is part of your MD Synergy Solutions, LLC (“MDSS”) Client Agreement (“Agreement”). Unless MDSS gives terms another meaning in the Terms & Conditions, they are used with the same meanings as in your Client Agreement.

1. Services

Below are the services included for the modules selected in the Designated Modules & Services in the Client Agreement for which the Client has elected to purchase or subscribe to.

Practice Management

Online one-time setup of :

Input Client’s provider name(s) and number(s), billing address(es), practice address & patient statement address
Input Client’s practice facilities
Setup Client’s user names and passwords
Import procedure codes from Client-supplied CSV file
Import Client’s patient demographics (not including insurance information) from Client-supplied CSV file
Set up Client’s Appointment books, and specify Client’s “Appointment” and “Arrival Status” designations
Upload charge tickets supplied by Client in a Word file or as designed by MDSS
EDI enrollment of Client-designated providers (with payers with which MDSS’ clearinghouse has an electronic EDI relationship)
ERA enrollment of Client-designated providers (with payers with which MDSS’ clearinghouse has an electronic ERA relationship)
Setup Fax line (if Client elects Fax option)

Training: Up to 4 hours of interactive, on-line training in the use of the Practice Management Module
Support: Unlimited phone & e-mail support weekdays from 6:00 a.m. – 5:00 p.m. PST

Transcription

Online one-time setup of :

Establish Client’s users and permission levels to access the PRO Transcription Module
Setup templates and macros as provided by Client to automate the dictation process
Setup document formatting for proper appearance on Client’s letterhead

Training: Up to 4 hours of interactive, on-line training in the use of the Transcription Module
Support: Unlimited phone & e-mail support weekdays from 6:00 a.m. – 5:00 p.m. PST

ePrescription

Online one-time setup of :

Establish Client users
Setup permissions to access

Training: Up to 2 hours of interactive, on-line training in the use of the ePrescription Module
Support: Unlimited phone & e-mail support weekdays from 6:00 a.m. – 5:00 p.m. PST

Revenue Cycle Management

Online one-time setup of :

Setup patient demographic form
Create and upload Client’s Superbill
Setup patient statement address(es) with payment options according to Client preferences

Training: Up to 2 hours of interactive, on-line training on the following topics :

Batch scanning documents to MDSS for processing
Responding to inquiries for missing information
Reporting patient discounts, refunds and write-offs
Viewing and understanding unfiled, saved and rejected claims
Viewing and analyzing line item posting, payment validation and A/R reports
Where to direct questions regarding patient statements

Support: Unlimited phone & e-mail support weekdays from 6:00 a.m. – 5:00 p.m. PST
Services: The following services are included in the Revenue Cycle Management services

Revenue Cycle Data Entry: Includes Patient Demographics Data Entry, Charge Entry and Payment Posting (Insurance and Patient).
Insurance Claim Submission (primary and secondary insurers): Claims are submitted by MDSS to the clearinghouse. For payers with which MDSS’ clearinghouse has an electronic relationship, claims are submitted electronically. Paper claims are submitted for payers with which MDSS’ clearinghouse has no electronic relationship, and where otherwise required. Secondary billings are managed by MDSS in a similar manner. Subject to the provisions of Section 8 of the Terms and Conditions, MDSS will use commercially reasonable efforts to assure that Claims are submitted electronically and paper within 48 hours after receipt of completed Superbill from Client.
Insurance Claim Follow-up: For all unpaid claims, the reason for non-payment will be reviewed, and appropriate actions will be taken to seek payment. Subject to the provisions of Section 8 of the Terms and Conditions, MDSS will endeavor to follow-up on all unpaid claims within 45 but no later than 60 days following (a) the claim billed date, (b) the claim resubmitted date or (c) the last follow-up date, as may be applicable.
Denial Management: MDSS will analyze denials and take actions where MDSS deems appropriate in an effort to resolve the denials and get the claims paid.
Patient Statement Processing: MDSS will follow-up to collect unpaid patient balances by sending up to three statements to patients, electronically only. The first statement will be sent no later than 90 days from the date of billing. The second statement will be sent approximately 30 days following the first statement, and will include the notation, “PAST DUE.” The third statement will be sent approximately 30 days following the second statement, and will include the notation, “FINAL.”
Write-offs and Patient Refunds: Patient accounts deemed uncollectible by MDSS and patient refunds will be identified as such to Client. Client may, in its sole discretion, write off such accounts, continue to carry such accounts on its books or provide written authorization to MDSS to take appropriate action.
Management of Client’s Old AR: Upon request by Client, MDSS may offer a solution for billing and collection of Client’s old accounts receivable (AR), based upon evaluation by MDSS of Client’s old AR. Management of Client’s old AR is subject to a separate fee, to be determined and submitted to Client for approval following such evaluation.
Advanced Collection: Following the third (Final Notice) statement sent by MDSS regarding an unpaid patient balance (as described in Revenue Cycle Management- Patient Statement Processing, above), Patient accounts deemed uncollectible by MDSS will be identified as such and a written report identifying such accounts provided to Client for written authorization for MDSS to forward any or all of such accounts to an outside collection agency for Advanced Collection. Advance Collections are subject to a separate fee, as set forth on Exhibit A of the Agreement.

PRO EMR

Online one-time setup of :

PRO EMR Database setup
User setup
Appointment Book/Location transfer/setup
Transfer all existing appointment
Import patient information
Specialty templates and workflow design. Includes 30 days of support for customized templates post PRO EMR go-live
Customization of referral letters (quantity to be determined upon implementation)
Customization of favorite list of CPT and ICD
Creation of Patient/Doctor Form (quantity to be determined upon implementation)

* Any additional costs associated with custom template design or customizations of the PRO EMR, interfaces with other applications or products are subject to the terms of a separate Statement of Work provided to and approved by the Client.
Training: Training is based on the terms of the Client Agreement.
Support: Unlimited phone & e-mail support weekdays from 6:00 a.m. – 5:00 p.m. PST

2. ePrescription Module

This Module utilizes a third party, NewCrop, LLC (“NewCrop”), to supply the functionality of the Module that does not reside on the MDSS Application. Client’s will be automatically directed to the NewCrop website from the MDSS Application. Client agrees to accept and agree to the terms of the NewCrop license agreement and/or such other agreements and documents as NewCrop may from time to time require of MDSS’ e-Prescription Module clients and to enroll and establish an account with NewCrop in accordance with NewCrop’s policies and procedures as in effect from time to time. Client’s account with and use of the NewCrop electronic prescribing system shall, in addition to the terms and conditions of the Client Agreement, be governed by such NewCrop agreements, policies and procedures. Client agrees to fulfill such enrollment requirements.

Client further agrees to take all commercially reasonable measures to prevent access to the ePrescription Module and NewCrop’s Site and/or Content by any person not authorized by MDSS and by NewCrop to do so. Client shall not permit or enable any individuals to access or use any portion of the Site and or Content (i) without such individual’s having accepted and agreed to all the applicable terms and conditions of use as established from time to time by MDSS and by NewCrop, or (ii) without such individual having demonstrated to MDSS’ or to NewCrop’s reasonable satisfaction, using qualifying documentation, certificates and other standards and methodologies customary in the health care industry and meeting applicable legal and regulatory requirements, such individual’s personal identity and lawful authority to exercise such access and use. Client agrees to indemnify and hold harmless MDSS and NewCrop from any and all access and use, including any and all losses, damages, expenses, claims, liabilities and other causes of action arising out of any unauthorized use.

Additional Third-Party Requirements.

Client acknowledges that portions of the NewCrop Electronic Prescribing system contain or involve features, content and/or functionality supplied by NewCrop’s third party suppliers, some of whom impose particular standards or specifications on the process by which such features, content and functionality are made available to end users. Client agrees to cooperate with MDSS to ensure that such standards and specifications are complied with at all times. Without limiting the foregoing, Client shall cooperate with NewCrop to comply with applicable requirements and restrictions pertaining to the availability of connectivity and other service supplied by RxHub, LLC (“RxHub”). Failure to agree to or satisfy such additional terms and conditions may result in the ePrescription Module or certain content, features or functionality thereof being rendered unavailable to Client.

Client acknowledges that features, content and/or functionality included in or distributed through the ePrescription Module may include data and/or vocabulary sources and other information furnished by the U.S. Department of Health and Human Services’ National Library of Medicine (“NLM”), and that NLM requires its licensees to take reasonable steps to ensure that anyone who has authorized access to data or vocabulary sources from the UMLS® Metathesaurus® complies with the provisions of the standard on-line “License Agreement for use of the UMLS® Metathesarus®”, as promulgated or made available through the website or websites maintained for this purpose by NLM and/or its successors or responsible governmental departments or agencies (as amended from time to time, the “NLM License Agreement”), and which may be currently found at http://www.nlm.nih.gov/research/umls/license_print_version.html. Accordingly, Client hereby agrees (i) that its use and disclosure of data and/or vocabulary and other information or content obtained from NLM or its suppliers is subject to the same restrictions and obligations imposed on MDSS or NewCrop with respect to use or disclosure of such information under the NLM License Agreement, and (ii) to maintain complete compliance with all of the terms of the NLM License Agreement. Violation by Client of the provisions of the NLM License Agreement shall constitute a breach of this Agreement.

Client acknowledges and agrees that MDSS may terminate Client’s use of the e-prescription Module, including without limitation the SureScripts Electronic Prescribing Network if such Module or Network is accessed by an individual not duly licensed or authorized to fill prescription orders or if such person otherwise acts in a manner inconsistent with the terms and conditions under which SureScripts has agreed to permit the use of its network, and no cure period or dispute resolution procedures shall be available to such person with respect to such action unless otherwise agreed to by SureScripts. In accessing and use of the e-Prescription Module, Client agrees to act at all times in a manner consistent with (i) SureScripts-provided instructions, specifications, and rules as issued from time to time, (ii) the duties and obligations to SureScripts of NewCrop and MDSSS, and (iii) all applicable laws and regulations now or hereafter imposed relating to electronic prescribing.

3. Televox Housecalls

MDSS’ Patient Notification Module, an automated reminder system that alerts patients to appointments and other information, is fully integrated into the MDSS Application. This Module utilizes a third party, TeleVox Software, Inc. (“TeleVox”), to supply the functionality of the Module that does not reside on the MDSS Application, through a Televox product called “Housecalls.”

MDSS may alter, expand or reduce the features of the Housecalls Services from time to time without notice to Client. Client agrees that MDSS’ obligation to provide Housecalls Services in conditioned upon Client providing all information and assistance reasonably required to perform the Housecalls Services.

i. License. Subject to Client’s compliance with the Terms and Conditions Agreement, MDSS hereby grants Client a non-exclusive, non-transferable license, during the period of time that Client subscribes to the Housecalls Services, to use the Housecalls Services. Except as specifically set forth herein, MDSS or its suppliers retain all right, title, and interest, including all intellectual property rights, relating to or embodied in the Housecalls Services, including without limitation all technology, telephone numbers, MDSS addresses, software, or systems relating to the Housecalls Services. Client agrees not to reverse engineer, decompile, disassemble, translate, or attempt to learn the source code of any software related to the Housecalls Services. Other than using the Housecalls Services where Client is an active participant, Client may not resell or otherwise redistribute the Housecalls Services or otherwise generate income from the Housecalls Services (from an ASP model or otherwise), and in the event of any breach thereof, MDSS, Televox or any of their suppliers may terminate Client’s access and use of the Housecalls Services without liability or recourse by Client.
ii. Responsibility For Content, Transmitting Messages, and Accounts. Client is solely responsible for the information or content submitted, posted, transmitted or made available through Client’s use of the Housecalls Services (“Content”). Client may use the Housecalls Services to transmit Content or direct Televox to make contacts via any channel (in either case “Messages”) to, or with, recipients (the “Recipients”). Client is responsible for maintaining the confidentiality of Client’s accounts, passwords, owner numbers and necessary codes and personal identification numbers used in conjunction with the Housecalls Services and for all uses of the Housecalls Services in association with Client’s accounts whether or not authorized by Client including unintended usage due to fraud, holidays, daylight savings, computer clock errors or similar circumstances. Client acknowledges and agrees that MDSS and Televox do not control nor monitor Client Content nor guarantee the accuracy, integrity, security or quality of such Content. Recording or taping any use of the Housecalls Services by Client may subject Client to laws or regulations and Client is solely responsible for and obligated to provide any required notification to those being recorded or taped. Client represents and warrants that: (a) Client has the legal right to use all Content and send all Messages to the Recipients (including obtaining any required consents from the Recipients) and the content, timing and purpose of all Messages, campaigns and programs are in compliance with all applicable laws, rules and regulations; (b) Client is the transmitter of all Content and Messages and MDSS and Televox are merely acting at Client’s direction as a technology conduit for the transmission of the Content and the Messages; (c) MDSS’s and Televox’s use of the Content shall not violate the rights of any third party or any law, rule or regulation and (d) Client will not transmit or allow to be transmitted any Content or Messages that: (i) Client does not have a right to make available under any law or under contractual or fiduciary relationship; (ii) are false, inaccurate, misleading, unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable; harmful to minors in any way; (iii) infringe any patent, trademark, trade secret, copyright, or other proprietary rights or rights of publicity or privacy of any party; (iv) utilize any unsolicited or unauthorized advertising, promotional materials, “junk mail”, “spam”, or any other forms of solicitation; or (v) interfere with or disrupts the Housecalls Services or servers or network operator networks. Client represents and warrants that Client has obtained prior express consent to contact each cell phone number delivered by Client to MDSS or Televox in connection with the provision of any Housecalls Services delivering a prerecorded message (“Notification Housecalls Services”); (ii) where MDSS or Televox reasonably believe that Client may not have complied with all laws, rules and regulations applicable to the performance of Notification Housecalls Services, MDSS or Televox may, at its option: (A) scrub all numbers against any appropriate data base deemed necessary to remove all cell phone numbers or (B) not provide any Notification Housecalls Services. Client further represents and warrants that: (a) Client have incorporated an interactive opt-out mechanism as part of any program relating to any Notification Housecalls Services or (b) the contacts that are the subject of such Notification Housecalls Services are not initiated to induce the purchase of goods or Housecalls Services or to solicit a charitable contribution (“Solicitations”). Where MDSS or Televox reasonably believes that Client may not have complied with all laws, rules and regulations applicable to Solicitations, MDSS or Televox may, at its option: (a) insert an interactive opt-out mechanism and pass the resulting data to client or (b) not provide any Notification Housecalls Services. Client shall indemnify, defend and hold MDSS, Televox, their affiliates and their officers, directors, employees and agents harmless from and against any and all claims of loss, damages, liability, costs, and expenses (including reasonable attorneys’ fees and expenses) arising out of or resulting from: (a) Client’s failure to obtain prior express consent to contact each of the cell phone numbers delivered by Client to MDSS in connection with the provision of Notification Housecalls Services or the failure of such consent to comply with any law, rule or regulation; (b) the failure to provide an opt-out mechanism in connection with any Solicitation or the failure of any opt-out mechanism to comply with any law, rule or regulation; and (c) Client’s failure to comply with any third party rights or law, rules or regulations applicable to Client’s systems, materials or programs relating to Notification Housecalls Services.

13. Privacy and Data Use. The information MDSS or Televox holds about Client will be used to provide the Housecalls Services requested and may also be used for identification, account administration, analysis and fraud/loss prevention purposes. More details about how that information is used by Televox are set forth in the Televox privacy policy which governs both Client’s visit to the Televox websites through the MDSS application and Client’s resulting use of the Housecalls Services. A copy of the Televox privacy policy may be found on its website, www.telvox.com. Copies are also available from Televox by post, or by contacting Televox customer service. The parties acknowledge and agree that: (a) MDSS and Televox may have access to personal data of Client and Client’s patients under applicable personal data protection and privacy laws (the “Data Protection Laws”); (b) personal data may be processed by MDSS and Televox and their affiliates throughout the world; and (c) Client is the data controller and retains full responsibility for the data processed on its behalf by MDSS and Televox acting as data processor.

iii. Governmental Agencies. Use of the Housecalls Services by the United States Government or other governmental agencies shall be as “restricted computer software” or “limited rights data” as set forth in 48 CFR 52.227-14, or as “commercial computer software” or “commercial comp S 252.227-7202, or under such other similar applicable terms and conditions to prevent the transfer of rights in and to the technology to the government or such agency other than under normal commercial licensing terms and conditions. Contractor/manufacturer is Televox, Inc., 8420 W. Bryn Mawr Ave., Suite 400, Chicago, IL 60631.
iv. Export and Import Control Laws and Regulations. Client acknowledges that the laws and regulations of the United States restrict the export and re-export of commodities and technical data of United States origin, including the Housecalls Services and any related software. Without limiting the foregoing, Client acknowledge that the Housecalls Services and any related software are or may be an “encryption item” subject to controls under the Export Administration Regulations promulgated by the U.S. Department of Commerce. Client agrees not to export or re-export the Housecalls Services or any related software in any form in violation of the export laws of the United States or any foreign jurisdiction.
v. Compliance. Upon request, Client agrees to provide reasonable proof of compliance with the provisions set forth in the Terms & Conditions, Client agrees to immediately notify MDSS of any unauthorized use of Client’s account of which Client becomes aware and of any actual or potential breach of the Terms and Conditions by Client. Client acknowledge and agree that: (a) MDSS and Televox do not provide Content and Client shall be solely responsible for all Content and Messages and for providing any list of names, numbers or addresses for Client to utilize in sending Messages; and (b) MDSS has not and is not expected to provide Client with any analysis, interpretation or advice regarding the compliance of any aspect of Client’s Messages, Client’s Content, campaigns or programs with any third party rights or laws, rules, or regulations. Client agrees that MDSS may in its sole discretion suspend or terminate provision of any or all of the Housecalls Services without liability or penalty at any time in the event that: (a) MDSS or Televox is obliged to comply with an order, instruction, directive or request of a governmental body or network operator which necessitates that it do so; (b) MDSS or Televox discover an actual or potential breach or where MDSS or Televox believes that Client has not so complied with its obligations hereunder; or (c) one or more of the network operators upon which the provision of Housecalls Services hereunder is dependent suspends its provision of those Housecalls Services to Televox or MDSS.
vi. Investigation And Enforcement. All users of the Housecalls Services must adhere to the Terms and Conditions Agreement. MDSS has the right, but is not obligated, to strictly enforce the Terms and Conditions through self-help, active investigation, litigation and prosecution. MDSS may also access and disclose any information (including transactional information) related to Client’s access and use of the MDSS Application, or the Televox website or systems for any lawful reason, including but not limited to: (1) responding to emergencies; (2) complying with law, rule or regulation (e.g., a lawful subpoena); (3) protecting their rights or property and those of our customers; or (4) protecting users of Housecalls Services and other carriers from fraudulent, abusive, or unlawful use of, or subscription to, Housecalls Services.
vii. Limited Warranty. ALL HOUSECALLS SERVICES ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND WITHOUT ANY WARRANTY. CLIENT UNDERSTAND AND AGREE THAT THE HOUSECALLS SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. MDSS AND ITS SUPPLIERS AND TELEVOX AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. MDSS AND TELEVOX MAKE NO WARRANTY OR REPRESENTATION REGARDING ANY INFORMATION, MATERIALS, GOODS OR HOUSECALLS SERVICES OBTAINED THROUGH MDSS OR THE HOUSECALLS SERVICES, OR THAT THE HOUSECALLS SERVICES WILL MEET ANY OF CLIENT REQUIREMENTS, OR BE UNITERRUPTED, TIMELY, SECURE OR ERROR FREE. USE OF TELEVOX’S HOUSECALLS SERVICES ARE AT CLIENT SOLE RISK. MDSS AND TELEVOX ARE NOT LIABLE FOR ACTS OR OMISSIONS OF OTHER SERVICE PROVIDERS, FOR INFORMATION OR CONTENT OF COMMUNICATIONS, THIRD PARTY SERVICES, EQUIPMENT FAILURE OR MODIFICATION, OR CAUSES BEYOND MDSS’S or TELEVOX’S REASONABLE CONTROL.
viii. Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL MDSS, OR ITS SUPPLIERS OR AFFILIATES, OT TELEVOX AND ITS SUPPLIERS OR AFFILIATES BE LIABLE FOR INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGE FOR LOSS OF PROFITS OR DATA, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, COST OF COVER OR ANY OTHER PECUNIARY LOSS) ARISING OUT OF, OR RESULTING FROM THE HOUSECALLS SERVICES OR THE TERMS AND CONDITIONS WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY), CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF MDSS or TELEVOX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR DAMAGES THAT MAY NOT BE EXCLUDED BY LAW, CLIENT AGREES THAT ALL DAMAGES ARE EXCLUDED EXCEPT FOR THE DIRECT DAMAGES THAT ARE ACTUALLY INCURRED BY CLIENT IN REASONABLE RELIANCE, UP TO THE GREATER OF THE AMOUNT OF A REFUND OF THE PRICE THAT CLIENT ACTUALLY PAID FOR THE HOUSECALLS SERVICES DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE FILING OF SUCH CLAIM REGARDLESS OF THE FORM OF ACTION OR CLAIM (E.G., CONTRACT, WARRANTY, TORT, STRICT LIABILITY, NEGLIGENCE, FRAUD, OR OTHER LEGAL THEORY) OR ONE THOUSAND DOLLARS (US $1,000).
ix. Indemnification. Client shall indemnify, defend and hold MDSS and its affiliates and Televox and its affiliates and their respective officers, director, employees and suppliers harmless from any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including reasonable attorneys’ fees, which arise out of or relate to: (i) Client’s use of the Housecalls Services (including without limitation, any person accessing the Housecalls Services using Client’s accounts and any Content or Messages); (ii) any actual or alleged violation of the Terms and Conditions or law, rule or regulation by Client (including without limitation, any person accessing the Housecalls Services using Client’s accounts); (iii) any actual or alleged infringement or violation by Client (including without limitation, any person accessing the Housecalls Services using Client’s accounts) of any intellectual property, privacy or other right of any person or entity or (iv) information or content that Client submits, posts, transmits or makes available through the Housecalls Services.
x. Third Party Services. All access and use of any third party services occasioned hereunder is governed by the terms and conditions set forth from time to time by such third party service suppliers, MDSS and Televox. Client hereby agrees to be bound by the terms and conditions of use and privacy policy of such third party service suppliers, as each may be amended from time to time, and such terms and conditions are hereby specifically incorporated herein by reference.
xi. Miscellaneous. Except as otherwise expressly provided herein, all remedies provided for in the Terms and Conditions shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise. Client authorize MDSS’s and Televox’s monitoring including recording of calls for the purposes of quality assurance and Client further consent to MDSS’s and Televox’s use of automatic dialing equipment to contact Client. MDSS’s performance of the Housecalls Services is subject to existing laws and legal process, and nothing contained in the Terms and Conditions is in derogation of MDSS’s right to comply with governmental, court and law enforcement requests or requirements relating to Client use of MDSS’s website, the Housecalls Services or information provided to or gathered by MDSS or Televox with respect to such use. HousecallsClient acknowledges and agrees that Televox and its affiliates and suppliers are third party beneficiaries of the agreements set forth herein. A printed version of the Terms and Conditions and of any notice given to Client in electronic form will be admissible in judicial or administrative proceedings based upon or relating to the Terms and Conditions to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The Patient Notification Module Amendment may be executed by fax, and/or in any number of counterparts, all of which shall together be considered an original and may be evidenced by a fax or scanned electronic (e.g. .pdf, .tif) copy.
xii. Governing Law; Exclusive Forum; Jurisdiction. Client consents to the exclusive jurisdiction and venue of the courts sitting in Los Angeles County, California with respect to any dispute, controversy or claim arising out of or relating to this the Terms and Conditions or the Housecalls Services. The Terms and Conditions and all causes of action related to this Terms and Conditions or the Housecalls Services will be governed by and construed in accordance with the laws of the state of California, without giving effect to the conflict-of-laws principles thereof that would require application of the laws of a different state or jurisdiction. Client agrees to service of process by mail directed to Client’s billing address. Client waives all defenses including but not limited to sovereign immunity, lack of personal jurisdiction and forum non conveniens and expressly waive any right to bring suit or have any action heard in Client’s local courts. Client agrees that any claim or cause of action arising out of or related to the Terms and Conditions must be commenced by Client within one (1) year after the cause of action arose.
xiii. Modification. Notwithstanding anything in this Section to the contrary, if Televox posts amended terms of use of the Housecalls Services on its Housecalls website which are inconsistent with the terms and conditions contained in this Terms and Conditions Agreement, such terms will automatically modify the Terms & Conditions and become effective ten (10) days after they are posted on such website. By using the Housecalls Services after such revised terms are posted, Client agrees to be bound by any such amended provisions. Therefore, Client agrees to periodically visit the Televox Housecalls website to examine the then-current terms and conditions pertaining to use of the Housecalls Services.

 

4. Patient Statement Processing

Patient Statement Processing utilizes a third party, NexTrust, Inc. (“NexTrust”) through their product called “BillFlash.” Bill Flash is fully integrated with the MDSS PRO Practice Management. Client must sign up directly with NexTrust, however, to obtain the functionality of this Module. Client agrees to accept and agree to the terms of the NexTrust license agreement and/or such other agreements and documents as NexTrust may from time to time require of MDSS’ Patient Statement Processing clients and to enroll and establish an account with NexTrust in accordance with NexTrust’s policies and procedures as in effect from time to time. Client’s account with and use of the NexTrust Bill Flash system shall, in addition to the terms and conditions of the Client Agreement, be governed by such NexTrust agreements, policies and procedures. Client agrees to fulfill such enrollment requirements.

MDSS and NexTrust may alter, expand or reduce the features of the Bill Flash Services from time to time without notice to Client. Client agrees that MDSS’ obligation to provide BillFlash Services in conditioned upon Client providing all information and assistance reasonably required to perform the BillFlash Services.

5. Hardware & Technical Requirements

During the Term hereof, Client shall maintain the following equipment at its business in order to interact efficiently with the MDSS Application:

Computer (minimum of 1) with Windows XP or Windows Vista
For Windows XP, minimum 512 Ram (1 GB preferred), Pentium 4 or higher
For Windows Vista, minimum 1 GB (2 GB preferred), Pentium Duo or AMD X2
For Windows 7, minimum 2GB Ram, Pentium Duo or AMD X2
Software: Microsoft Internet Explorer 7.0 or higher, Microsoft Word, Microsoft Excel and Adobe Reader
Laser printer
High Speed Internet connection (e.g., DSL, Cable modem)
Business E-mail Account(s)
Document scanner, with automatic document feeder and TWAIN compatibility (applicable to Revenue Cycle Data Entry and Revenue Cycle Management Clients only)

Below are the hardware requirements specifically for PRO EMR.

Hardware Type Function Quantity Specifications and Suggested Model Remarks
Desktop/ Laptop/ Tablet PC Tablets/ Laptops : For use by physicians and nurses. Can be carried from room to room. Allows complete documentation of patient encounter
DeskTops/ Laptops : For use by any staff who need access to clinical data but do not necessarily require wireless, portable connectivity
1 for each physician / Nurse or PA For Tablet PC’s: Choice dependent on preferences of weight, battery life etc. with a mandatory resolution support of 1024 x 768 • Dual core / Core 2 Duo CPU with 1.8Ghz or higher • Min 1GB RAM/ 2 GB if using Dragon Naturally Speaking • 40 GB or higher Hard Disk • 802.11 G integrated wireless card • CD/DVD RW Burner, Ethernet • Microsoft Windows XP Professional or Vista Business/ Windows 7 Professional recommended for Laptops / Tablets Please select the latest and the best available models for your budget as these models and configurations change very frequently ( with minimum screen resolution of 1024×768 for Tablet PC’s or Laptops and at least 19′ monitors or higher for desktops)
Wireless Router Broadcasts & receives data wirelessly to/from Tablet PCs/ Laptops/ Desktops and other wireless equipment connectivity required in practice 1 • 802.11 G/N wireless compatible or higher router required if using wireless devices. • 3Com, Linksys, Netgear or similar recommended for smaller offices • Cisco Aironet recommended for larger offices Please select the latest and the best available models for your budget as these models and configurations change very frequently.
Internet Speeds A business class DSL line or equivalent is required for practices of 15 users or less for the ASP application. For larger practices, a T-1 line or greater may be required. A Fixed Internet IP address is required if PrognoCIS is going to be accessed from outside the office (like from home, hospital) OR Patient portal is required to be setup OR Electronic Prescription Refills module is to be setup. Redundant internet access may be recommended. Some ports will need to be opened for outside access.
Scanner (optional) Enables staff to digitally attach any pertinent documents to patient’s medical records. 1 • Twain-compatible scanners are recommended. Suggested models are Fujitsu fi-5120-C or Fujitsu fi-5220-C or the latest Please select the latest/best available models for your budget.
Card Scanner To scan drivers license and insurance cards Medicscan duplex scanner
Printer Print out patient education and prescriptions. Networked printers are recommended. Some suggested models are HP Laserjet P2015dn or Dell Laser 1815dn for high volume or HP Laserjet P1015n or Dell Laser 1720dn for medium volume-see remarks Please select the latest/ available models for your budget as these models and configurations change very frequently
Network backbone For Large Practices Switched network backbone must support 100Mbps or higher
Microsoft Word At least one license of MS-Word 1 Required for forms creation, formatting of out-going faxes
Additional Software (ASP Clients Only) FTP Voyager 1 www.ftpvoyager.com : : Secured FTP for the transfer of scanned documents. Approximately Priced: $60 one time fee – required for ASP clients only.

Other Requirements:1.Remote access is required for support and updates. GoToMyPC / Logmein OR Remote Desktop connection details are required for remote support. 2. One machine (Ideally a non-user m/c so that the user is not disturbed) which has : a. Fax service like Fax Console (Windowx XP and UP) or Winfax, b. Microsoft Word 2000 and up, c. Fax Modem d. A telephone line connected to it. The same telephone line which is connected to fax machine can be used to connect to the computer by using a splitter. This is required for faxing documents out, receiving faxes directly on computer. e. 2 telephone chords from the splitter, one to fax machine and one to computer. 3. Dragon Medical Software from Nuance for voice interface into PRO EMR.

6. Revenue Cycle Management

For all Revenue Cycle Management Clients the following provisions apply:
The Revenue Cycle Management Module is an exclusive service. Throughout the full Term hereof (up to and including the date of termination), Client must submit to MDSS for processing all of its charges for all services provided by Client, including self-pay patient accounts, where any MDSS Module or Service is utilized in any way with respect to a patient of Client or such patient’s accounts. In order to assist MDSS in completing the billing process in a timely manner, Client will use its best efforts to forward to MDSS, no later than the 3 rd Business Day following the date of service, all necessary billing information, including, without limitation, patient charges, new patient registrations and updates, required clinical documents and all payer correspondence.

Client must report to MDSS during the full Term hereof (up to and including the date of termination), all payments received by Client for services provided by Client, including self-pay patient accounts, where any MDSS Module or Service was utilized in any way with respect to a patient of Client or such patient’s accounts, in the format and manner as required by MDSS. Client will use its best efforts to report all such payments received by Client to MDSS as soon as practicable but, in any event no later than the 3 rd Business Day following receipt thereof, including both insurance and patient payments, regardless whether such payments are in cash, by credit card, by check or otherwise. Failure to report such payments in a timely manner directly and adversely affects the ability of MDSS to fairly and accurately calculate the fees owned to MDSS for its services and, therefore, will be considered a material breach of this Agreement.

In the event of a dispute or disagreement between Client and MDSS relating to Client payment receipts, Client agrees to an independent audit to MDSS’ satisfaction, including but not limited to an audit of Client’s bookkeeping general ledger and other pertinent books and records. The expense to conduct this financial audit will be the responsibility of MDSS if it is determined that payments were fully and properly reported by Client, and the responsibility of Client if the payment information received by MDSS did not fully reflect Client’s payment receipts during the applicable time period. Client agrees to cooperate in making its records available for such audit, and in scheduling any necessary on-site audit activities during MDSS’ normal working hours and normal Business Days such that the audit can be completed within 30 days of receipt of the written request by MDSS. The provisions of this paragraph will survive termination or expiration of this Agreement for three years.

MDSS will use commercially reasonable efforts to collect outstanding account balances from payers and patients. Following the third (Final Notice) statement sent by MDSS regarding an unpaid patient balance MDSS may, in its sole discretion, treat such balances as uncollectible. Patient accounts deemed uncollectible by MDSS will be identified as such and a written report identifying such accounts will be provided to Client. Client may, in its sole discretion, write off such accounts, continue to carry such accounts on its books or provide written authorization to MDSS to forward any or all of such accounts to an outside collection agency for Advanced Collection.

Following the third (Final Notice) statement sent by MDSS regarding an unpaid patient balance, in MDSS’ sole discretion, patient accounts with balances less than $20.00 may receive no further collection efforts from MDSS.

Patient accounts deemed uncollectible and accounts with balances less than $20.00 (each as described above), will be treated as uncollectible, and not included in the Client account aging reports, nor considered for purposes of MDSS’ Standards of Accuracy and Turnaround Times described herein.

Upon termination of this Agreement for any reason, Client shall compensate MDSS for work in progress (the “Work In Progress Fee”) which shall be calculated as follows: 6% of Client’s outstanding accounts receivable of less than 91 days (determined as of the date of termination) times the Client’s Historical Recovery Ratio. For purposes hereof, the Client’s Historical Recovery Ratio shall be determined by dividing Client’s average collections for the six months prior to notice of termination by Client’s average billings for the same period. The Work-In-Progress Fee shall be calculated by MDSS upon termination and shall be due upon receipt by Client. The Work-In-Progress Fee is based on the expectation that Client shall have fulfilled its obligations under this Agreement to: (1) submit to MDSS for processing all of its charges for all services provided by Client, and (2) report to MDSS all payments received by Client, each as required by this Section 4. In the event of a dispute or disagreement between Client and MDSS relating to Client’s fulfillment of these obligations following the giving of a Notice of Termination by either party, MDSS may, in its sole discretion, calculate the Work in Progress Fee on the basis of the Client’s average accounts receivable of less than 91 days on the final day of each of the six months prior to notice of termination, which determination shall be final and binding on the parties. In the event termination occurs a time such that six months of the required data has not yet accumulated, the averages called for hereunder will be calculated on the basis of the number of months for which such data is available.

Authorization to Release Patient Health Information. Client hereby authorizes MDSS to release patient health information to patient and/or to third parties for the purpose of fulfilling its responsibilities under this Agreement.

7. Fees

For all Designated Modules and Services purchased by the Client, Client agrees to pay MDSS upon order the monthly license fee and fixed Usage fees for the first month, including the annual AMA CPT License and one-time setup fees and all other fees applicable to the Modules and Services. Transaction fees accrued during a given month will be billed on the following statement cycle.

MDSS reserves the right to modify and adjust any of the rates set forth therein, effective upon the first day of any renewal Term hereof ( the “Renewal Date“) by advising Client thereof, in writing, not less than 60 days in advance of the Renewal Date. Notwithstanding the notice of non-renewal requirements of Section 1 hereof, Client may reject such adjusted rates by giving MDSS notice of termination of this Agreement not less than 30 days in advance of the Renewal Date.

Monthly licensing fees are not prorated; if services begin or ends mid-month, a full monthly licensing fee applies.

If on-site services (such as Initial Set-Up, Training or otherwise) are requested by Client, travel-related expenses for MDSS personnel to travel will be pre-paid by the Client.

8. Client Fee Payment Procedures and Terms

Client payments must be made to MDSS by credit card or automatic debit from a bank account. Client shall provide MDSS with a completed credit card or bank account authorization form, as applicable, in the form set forth in Exhibit C, and authorize MDSS or its agent to automatically charge the identified credit card or debit the identified bank account for all fees and other amounts then owing under this Agreement, including any applicable taxes. The Client authorization form shall remain in effect until notice of withdrawal thereof is received by MDSS. MDSS will charge the identified credit card or debit the identified bank account on a monthly basis, no earlier than 24 hours following delivery of the Client statement. If the identified credit card charge or ACH debit is declined by the applicable financial institution, Client’s account shall be deemed past due and MDSS may, in its sole discretion, immediately invoke any remedies it may have under this Agreement or under law including, without limitation, suspending its provision of Services and /or Client’s access to the Application.

Client must notify MDSS of any billing problems or discrepancies within 90 days after they first appear on its credit card or bank account statement. If Client does not bring them to MDSS’ attention within 90 days, Client waives its right to dispute such problems or discrepancies.

Client is solely responsible for any and all fees charged to the identified credit card or bank account by the issuer, bank, or financial institution including, but not limited to, membership, overdraft, insufficient funds, and over the credit limit fees. All fees listed on Exhibit A include a cash discount. If Client elects to pay by credit card, the cash discount will not apply and the fees listed on Exhibit A will be increased by 2.4% for use of Visa or MasterCard and 3% for use of American Express.

If Client’s account becomes past due, Client fails to perform or otherwise is in breach of any provision of this Agreement, Client makes an assignment for the benefit of creditors (whether voluntary or involuntary) or a petition is filed by or against Client under the US bankruptcy act, then MDSS shall have the right, in its sole discretion, to exercise any one or more of the following remedies: (a) recover any amount then due and any other amount as it becomes due; (b) impose a penalty of 10% of the amount then due and owing, (c) assess interest on any amount then due and owing at the rate of 12% per annum (or the maximum rate allowed under California law), (d) withdraw, withhold or suspend Client’s access to the Application, (e) withhold its Services, (f) terminate this Agreement; (g) take possession of any Software and Documentation, wherever located, without demand or notice, without any court order or other process of law and without liability to Client for any damages occasioned by such action; and (h) pursue any other remedy at law or in equity. MDSS shall have the right to recover all costs and expenses (including attorneys’ fees) associated with collecting past due payments from Client.

Client acknowledges and accepts the forgoing Payment Procedures and Terms (and any other remedies available to MDSS under this Agreement and by law).

9. Calculation of Fees

For purposes of calculating fees for Revenue Cycle Management services (RCM), the term “Collections” shall mean the gross amount collected by Client on all patient accounts, including self-pay patient accounts, where any MDSS Module or Service was utilized in any way (except solely utilization of the PRO Practice Management Module’s component “Scheduler”) with respect to a patient of Client or such patient’s accounts. The term “Collections” does not include amounts collected through Advanced Collections, which are subject to a separate fee.

For purposes of the PRO Transcription Module, a “Line” is defined as 65 Gross Characters. The term “Gross Character” means any letter, number, symbol or function key necessary for the final appearance and content of a document, including the space bar, carriage return, tab, underscore, bold, shift, etc., and any character contained within a macro, header or footer. For purposes of clarity and example, each bold character and each capitalized character is counted as two Gross Characters. For billing purposes, the billable Line count is calculated by dividing the total number of Gross Characters by 65.

With respect to the PRO Document Management Module, storage space is made available on a per gigabyte (GB) basis only. Storage fees are not prorated for partial utilization of a GB of storage space made available to Client. Once the Client’s existing allocated storage space is exceeded, Client is automatically allocated an additional GB of space, and charged accordingly.

With respect to the PRO Practice Management Module, “per transaction” means any electronic transaction, such as electronic eligibility inquiry, electronic claim submission, and electronic remittance advice (“ERA”), processed through the MDSS clearinghouse.

10. Standards of Accuracy and Turnaround Times

MDSS will use commercially reasonable efforts to assure that standards of accuracy and turn-around times referenced in this Agreement are met or exceeded. Such standards and turn-around times are based on MDSS’ company-wide experience, and do not reflect planned or unplanned system down-time, events outside of our reasonable control or the impact of actions of third parties. During the first 90 days following the Go-Live Date, Client acknowledges and agrees that the standards of accuracy and turn-around times referenced in this Agreement may not be met.

11. Software License

Subject to the terms and conditions of this Agreement (including any addendums hereto, if applicable), MDSS hereby grants to Client, during the Term hereof, a non-exclusive, non-transferable right to access and use the MD Synergy Solutions Application (the “Software”), solely as it relates to the Designated Modules and Services.

Client acknowledges that the Software is owned by MDSS and its licensors and this Agreement does not grant Client any right, title or interest in or to the Software. Client agrees to indemnify MDSS and its licensors against any claim or loss (including, without limitation, reasonable attorneys’ fees) arising from or relating to use of the Software, including, without limitation, piracy, improper or illegal downloading or copying, theft, damage, or destruction. Client acknowledges: (a) MDSS and its licensors retain all right, title and interest in and to the original, and any copies, of the Software; and (b) ownership of all patent, copyright, trade secret, trademarks and other intellectual property rights pertaining thereto shall be and remain the sole property of MDSS and its licensors.

Without limiting the foregoing, Client agrees not to, and will not permit or authorize third parties to: (a) modify, translate, localize or create derivative works of any Software; (b) decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms of the Software by any means whatever, or disclose any of the foregoing; (c) knowingly take any action that would cause any Software to be placed in the public domain; or (d) distribute any batch or off-line processing of content using Software ; (e) rent, lease, or otherwise permit third parties to use the Software; (b) use the Software or Services to manage the business of any third party; or (c) circumvent or disable any security or other technological features or measures of the Software. Client must use the Software and Services in compliance with all applicable laws and regulations. Client will not make or publish any representations, warranties, or guarantees on behalf of MDSS concerning the Software or Services without Client’s specific prior written approval.

Client will use its best efforts to prevent any unauthorized use of the Software, Services and any communication material(s) provided (or access thereto granted) to Client that is used by MDSS to describe, explain or instruct regarding the Application (the “Documentation“), and immediately notify MDSS in writing of any unauthorized use that comes to Client’s attention. If there is unauthorized use by anyone who obtained access to the Software or Services directly or indirectly through Client, Client will take all steps reasonably necessary to terminate the unauthorized use. Client will cooperate and assist with any actions taken by MDSS to prevent or terminate unauthorized use of the Software, Services or Documentation.

12. Hiring of Personnel

Client acknowledges that MDSS provides a valuable service by identifying and assigning knowledgeable personnel for Client’s work. Client further acknowledges that Client would receive substantial additional value, and MDSS would be deprived of the benefits of its work force, if Client were to hire MDSS’ personnel after they have been introduced to Client by MDSS. Without the prior written consent of MDSS, Client shall not recruit or hire any personnel of MDSS who are or have been assigned to perform work for Client until one (1) year after termination or expiration of this Agreement. In the event that Client hires any personnel of MDSS who are or have been assigned to perform work for Client, Client shall pay MDSS, as a hiring fee and not as a penalty, within one (1) month of the date of such hiring, an amount equal 100% of the total first year compensation of the individual plus the costs incurred by MDSS to hire and train a replacement for such person.

13. Confidentiality of Client Information

The confidentiality and use of patient information received from Client is governed by the terms of the HIPAA Business Associate Agreement between Client and MDSS. All other confidential information received from or regarding Client (the “Client Confidential Information”) will be used by MDSS and its employees solely in accordance with its obligations under this Agreement. MDSS will maintain all Client Confidential Information in confidence, and shall take commercially reasonable steps to protect its confidentiality. Other than aggregated data that does not in any way describe or identify Client, MDSS shall not disclose Client Confidential Information to any third party without Client’s prior written consent except as necessary for MDSS to perform its obligations under this Agreement.

14. Confidentiality of MDSS Information

During the course of this Agreement, MDSS will disclose to Client certain confidential and proprietary, non-public information of MDSS (the “MDSS Confidential Information“) for purposes of interfacing with Client, providing access to the Software, and to provide Services to Client hereunder. Such MDSS Confidential Information is, without limitation, contained in MDSS’ on-line Application, the MDSS on-line “help” tool, reports and other documents generated from the Application, Client manuals, the Documentation, and MDSS policies and procedures, as well as in oral and “on-line” training presentations. Client and its employees shall maintain all MDSS Confidential Information in the strictest confidence. Client shall not disclose such MDSS Confidential Information to any third party without MDSS’ prior written consent. Client agrees to take all reasonable steps to protect the confidentiality of the MDSS Confidential Information, and to prevent such information from falling into the public domain or the possession of unauthorized third parties. Further, Client shall not use or disclose any of the MDSS Confidential Information for the benefit of or to any third party. Client acknowledges that MDSS’ subsidiaries and affiliates are intended to be third-party beneficiaries of this provision.

15. Client-Related Data

Client is responsible for printing or exporting from the MDSS Application any Client-Related Data it wishes to use or preserve following expiration or termination of this Agreement, and must do so while Client is authorized under this Agreement to utilize the relevant Application Modules. Other than as specifically set forth in this Section, MDSS will be under no obligation to maintain or provide to Client any Client-Related Data following expiration or termination of this Agreement. For the purposes of this Section, the term “Client-Related Data” means any and all data contained within or capable of being generated by the Application that relates in any way to Client, its providers or patients, regardless whether such data was generated by Client, Client’s providers, payers, MDSS or otherwise. The following specific provisions shall set forth the sole obligations of MDSS for providing Client-Related Data upon expiration or Termination of this Agreement for any reason:

PRO Practice Management Module : Upon request by Client and payment of all fees then due and owing, including, without limitation, the PRO Practice Management Module Data CD fee set forth on Exhibit A, MDSS shall, within 15 days of termination, compile and provide Client with an electronic (CD) copy of the following information in CSV (coma separated value) format: patient demographics, insurer demographics and patient appointment data .

PRO Transcription Module : Upon request by Client and payment of all fees then due and owing, including, without limitation, the PRO Transcription Module Data CD fee set forth on Exhibit A, MDSS shall, within 15 days of termination, compile and provide Client with an electronic (CD) containing a set of image files of all transcribed reports in their native format (Word or PDF), without tag notes.

Revenue Data Entry Services : None.

Revenue Cycle Management Services : None.

PRO Document Management Module: Upon request by Client and payment of all fees then due and owing, including, without limitation, the Data CD fee set forth on Exhibit A, MDSS shall, within 15 days of termination, compile and provide Client with an electronic copy (CD) containing a set of image files in their native format (PDF) along with a CVS (comma separated value) text file containing the associated metadata

PRO EMR Module : None.

PRO Fax Module : None.

PRO ePrescription Module : None.

Patient Notification Module : None.

16. Post-Termination

Client will have no access to the MDSS Application following THE DATE OF termination. Should Client desire to have continued access to the MDSS Application post termination (for example, to access its data from within the MDSS Application, to work its own accounts receivable or for any other reason), Client must first enter into a new client agreement, with then-prevailing terms & conditions and monthly license fees and usage rates. The new agreement shall be for such number of months as the parties may agree. To assure uninterrupted access, it is recommended that Client sign and return such new agreement to MDSS no later than 14 days prior to the date of termination of this Client Agreement.

17. Compliance

Client warrants that it has in place and maintains a compliance program for the purpose of maintaining compliance with all applicable state and federal rules, regulations, and law.

18. Limited Warranty Disclaimer

Should the MDSS Application (the “Software”) fail to substantially comply with the material technical specifications set forth in the Documentation, Client must notify MDSS in writing no later than 30 days after initiation of access to the Application. MDSS’ entire liability and Client’s exclusive remedy in such an event shall be, at MDSS’ option, for MDSS to use reasonable efforts to repair or replace the Software or pay to Client a refund of the initial license fees pre-paid by Client for use of the Software. EXCEPT FOR THE FOREGOING, THE SOFTWARE AND SERVICES ARE PROVIDED “AS IS,” WITHOUT ADDITIONAL WARRANTY OF ANY KIND, AND MDSS EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE . MDSS DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE WILL MEET CLIENT’S REQUIREMENTS, OR THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECT IN THE SOFTWARE WILL BE CORRECTED. MDSS DOES NOT MAKE ANY GUARANTEES REGARDING THE UPTIME OR AVAILABILITY OF THE SOFTWARE AND SERVICES. FURTHERMORE, MDSS DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE IN TERMS OF ITS CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. No oral or written information or advice given by MDSS or MDSS’ representatives shall create any warranty with regard to the Software or Services or in any way increase the scope of this warranty.

19. Limitation of Liability

UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL MDSS BE LIABLE FOR ANY LOST REVENUE OR PROFITS OR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES THAT RESULT FROM THE USE OR INABILITY TO USE THE Application (the “SOFTWARE”) OR THE SERVICES, EVEN IF MDSS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL MDSS’ TOTAL LIABILITY TO CLIENT FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED ONE MONTH PRO PRACTICE MANAGEMENT MODULE LICENSE FEES PAID BY CLIENT TO MDSS UNDER THIS AGREEMENT. IN ADDITION, MDSS WILL NOT BE LIABLE FOR ANY CLAIMS OF ANY PARTY ARISING OUT OF ANY ALLEGED OR ACTUAL INFRINGEMENT BY THE SOFTWARE OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

20. Disclaimers

MDSS assumes no responsibility for, nor has MDSS expressly or impliedly opined as to, the legality or proprietary of Client’s business structure, tax or accounting methods, filing compliance or consequences, or the relationship of Client to any other physician or health care provider, or with Client’s patients. Except as expressly agreed herein, MDSS assumes no responsibility for the performance of any general accounting services for Client or for the preparation and filing of any tax forms or operating licenses or certificates.

Projections, proformas and feasibility studies prepared by MDSS at Client’s request or otherwise in connection with the performance of this Agreement are acknowledged by Client to be estimates only based upon historic information and/or published industry data, and do not represent a guarantee of income or financial performance.

21. Notices

All notices related to this Agreement shall be in writing and shall be delivered personally, by electronic facsimile (with confirmation by registered or certified mail placed in the U.S. mail no later than the following day), or by registered or certified mail, postage prepaid, addressed to a party as indicated on the signature line of this Agreement. Notice shall be deemed to have been given upon transmittal thereof as to communications which are personally delivered or transmitted by electronic facsimile and, as to communications made by United States mail, on the third (3 rd ) day after mailing. A party may give notice of a change of such party’s address in the manner provided above, which shall serve to change the party’s address for purposes of receiving notice.

22. Arbitration

Any claim or controversy arising out of or relating to this Agreement or its breach shall be resolved by binding arbitration under the auspices of the American Arbitration Association, and shall be held in Los Angeles, California; except that MDSS may seek injunctive relief in any court of competent jurisdiction. In addition to an award, the substantially prevailing Party shall also recover all of such Party’s attorney’s fees, expenses, and costs, not limited to costs of suit as incurred in each and every such action, suit or other proceeding, and including any and all appeals and/or petitions relating thereto. As used herein, “attorneys’ fees” means the full and actual cost of any legal services actually performed in connection with the matter for which such fees are sought, calculated on the basis of the usual fees charged by the attorneys performing such services, and such fees shall not be limited to “reasonable attorneys’ fees” as that term may be defined by statutory or decisional authority.

23. Waivers

No waiver shall be effective unless in writing and signed by the party making the waiver. No action taken pursuant to this Agreement, including any investigation by any party hereto shall constitute a waiver of any representation, warranty, covenant, or agreement contained herein or in any ancillary document. The waiver by any party hereto of a breach of this Agreement shall not constitute a waiver of any other breach; no failure, forbearance or delay on the part of the non-defaulting party to exercise any rights or remedies shall operate or be construed as a waiver thereof. Any single or partial exercise by the non-defaulting party of any rights or remedies shall not preclude any other or further exercise of that right or remedy or the exercise of any other rights or remedies. Acceptance by MDSS of any payments by Client following the occurrence of an event of default shall not be deemed a waiver of MDSS’ rights and remedies arising from such event of default.

24. General

This Agreement shall become effective only upon execution by an authorized representative of MDSS. This Agreement may not be assigned by either party without the prior written consent of the other party, except that MDSS may transfer this Agreement to any of its affiliates or to any successor-in-interest, including by way of a merger, reorganization, or sale of all or substantially all of its assets. This Agreement may only be amended by an instrument in writing, signed by both parties. A determination that any provision of this Agreement is invalid in whole or in part shall not affect the enforceability of those provisions found not to be invalid. This Agreement shall be governed by the laws of the State of California without regard to its choice of law provisions. Client consents to the jurisdiction of the federal or state courts located in Los Angeles County, California. MDSS may utilize a subcontractor(s) or other third party(ies) to perform all or any portion of its duties under this Agreement; provided, however, that MDSS shall remain responsible for all of its obligations under this Agreement.

25. Authority and Authorization Granted to MDSS

Client hereby represents and warrants that (i) it has the power and authority to execute this Agreement and perform its obligations hereunder and (ii) such execution and performance shall not conflict with or constitute a breach under Client’s charter documents, any laws or regulations applicable to Client or its business, or any other contract to which Client or its assets are subject or require the consent of any third party or governmental authority. Client expressly authorizes MDSS to complete any insurance forms and other billing related documents in order to perform the Services.

26. Force Majeure

MDSS will not be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond MDSS’ reasonable control, so long as MDSS uses commercially reasonable efforts to remove, work around or remedy such causes of non-performance.

27. Indemnification

Client will defend, indemnify, and hold MDSS harmless from any actual or threatened third party claim arising out of or based upon the Client’s or a third party’s use of the Application, Services or Documentation or Client’s breach of any of the provisions of this Agreement. Without limiting the foregoing, Client will indemnify MDSS against: (a) all damages, costs, and attorneys’ fees finally awarded against MDSS in any proceeding; (b) all out-of-pocket costs (including attorneys’ fees) incurred by MDSS in connection with the defense of such proceeding; and (c) if any proceeding is settled, Client will pay any amounts to any third party agreed to by Client in settlement of any such claims.

28. HIPAA

MDSS and Client acknowledge that pursuant to HIPAA, the United States Department of Health and Human Services has promulgated regulations relating to the privacy of individually identifiable health information and the security of such information when transmitted by electronic means. MDSS and Client shall cooperate such that the Application and Services comply with all such regulations applicable, when and as they become effective. Each party shall promptly notify the other party if it believes that HIPAA may require a modification of this Agreement or the Application or the Services. Additionally, if compliance with HIPAA would requires a modification to the Application or Services that would not be commercially reasonable to either party (in that party’s reasonable judgment), then that party may terminate this Agreement upon 30 days prior written notice to the other. Notwithstanding the foregoing, Client is solely responsible for determining that its collection and transmission of information to MDSS is compliant with HIPAA and other applicable laws and regulations.

29. Final Agreement

This Agreement, and any on-line provisions applicable upon Client’s accessing the Application or Services on the MDSS website, constitute the complete agreement of the parties regarding the subject matter herein and supersede all prior or contemporaneous proposals, agreements or other communications between the parties, whether oral or written, regarding the subject matter herein. The provisions of this Agreement and those contained on the MDSS website shall be read as consistent and complimentary wherever possible; however, in the event of any conflict, the provisions of this Agreement shall prevail.